In an ongoing effort to keep our members informed on compliance issues related to the Supreme Court’s decision to overturn Roe V. Wade, the Georgia Academy has engaged the Georgia law firm, Hall, Booth, Smith, to offer ongoing education and information to keep current on Georgia law related to this issue.
Georgia’s LIFE Act is now in effect and enforceable. The law, which was passed in May 2019 and imposed new and various regulations on abortion, had been enjoined by a federal district court since October 2019 as being unconstitutional under federal law. On July 20, 2022, however, the Eleventh Circuit Court of Appeals issued its decision in SisterSong Women of Color Reproductive Justice Collective v. Kemp—the appeal from the lower court’s decision declaring the law unconstitutional. Ultimately, the Eleventh Circuit reversed the district court and upheld the constitutionality of the law, and, by separate order entered later that day, the Eleventh Circuit stayed the district court’s injunction so that the law could take immediate effect.
A summary of the Eleventh Circuit’s decision follows along with some prospective thoughts about the law moving forward. At bottom, the law is now fully effective and enforceable. Therefore, every medical professional should become immediately knowledgeable about the law and how it may affect one’s practice.
A. The Eleventh Circuit’s Decision
The timing and substance of the Eleventh Circuit’s decision did not come as much of a surprise. After the Supreme Court’s recent decision in Dobbs, the challengers to the law were left with few arguments. In less than three pages, the Eleventh Circuit quickly dispatched with the law’s constitutionality in a post-Dobbs world. The Eleventh Circuit cited Dobbs and explained that the law’s regulation on abortion was rationally related to the State’s interest in providing full recognition to the life of an “unborn child.” In fact, the challengers to the law largely conceded this part of their argument, given the Supreme Court’s reasoning in Dobbs.
The Eleventh Circuit spent most of its discussion analyzing the void-for-vagueness issues. This was the alternative basis upon which the district court held the law unconstitutional. The Eleventh Circuit quickly explained that the law was not void on its face based on the re-definition of the term “natural person” throughout Georgia’s code so as to include an “unborn child.” The Eleventh Circuit reasoned that this argument was also foreclosed after Dobbs and concluded that the challengers could not mount a facial challenge, which would have completely barred the law in all its potential applications. Any argument that specific code sections were rendered unconstitutionally vague, the Eleventh Circuit explained, must be brought in separate proceedings challenging those particular applications of the law.
In a somewhat surprising move, the Eleventh Circuit entered an order later that day making the law fully enforceable. Typically, there is a brief gap between the issuance of an appellate decision and the effective date of the decision; however, the Eleventh Circuit’s decision left nothing else for the district court to do on the merits other than to formally dissolve the injunction. Thus, while a bit out of the ordinary the move was not necessarily unprecedented. And given the exceedingly complex questions surrounding the potential liability for violations of a once-enjoined law, the Eleventh Circuit’s decision arguably provides at least some clarity and notice to all that their conduct should immediately conform with the law.
B. What to Expect Moving Forward
Federal litigation surrounding the constitutionality of the LIFE Act is largely over. The challengers in the case do have the ability to appeal the Eleventh Circuit’s decision to the Supreme Court of the United States; however, the law would almost certainly remain in effect during that time, and it is unlikely that the Supreme Court would consider the case, given the decision in Dobbs. But this does not mean that constitutional challenges to the law are over.
It is important to understand that the federal litigation challenging the law was based on federal law. Often, many forget that states have their own constitutions, which provide different constitutional rules than the U.S. Constitution does. Recently, the Supreme Court of Georgia has issued several decisions reiterating that the Georgia Constitution provides greater protection for certain rights than do analogous provisions in the U.S. Constitution. Some lawyers and professors have argued that, despite the law’s validity under the U.S. Constitution, the law still violates certain provisions of the Georgia Constitution, including what appears to be a much broader understanding of the right to privacy. Thus, state-court litigation challenging the law under the Georgia Constitution may soon arise, and the law could be declared unconstitutional on this separate and independent basis.
Other forms of litigation may also arise in federal or state court beyond challenges to the law’s constitutionality, including litigation over other laws in different states that may impact Georgia’s law. For example, just a few weeks after Dobbs, the Centers for Medicare and Medicaid Services issued specific guidance interpreting the Emergency Medical Treatment and Labor Act (EMTALA) as preempting state law that directly conflicts with EMTALA’s mandates in the context of emergency medical care for pregnant women. The Food and Drug Administration has also taken steps to provide clarity with respect to Mifepristone. Thus, further litigation in these areas is expected, and even if not directly related to the LIFE Act this could still have downstream effects impacting the law in Georgia.
In sum, Georgia’s LIFE Act is now in effect and fully enforceable. Many have noted the law is extraordinarily vague in important respects and therefore does not provide sufficient guidance on what is or is not permitted. These are valid concerns. Unfortunately, greater clarity will not be achieved immediately. As briefly noted above, the law (in Georgia and across the country) is in a state of flux and will remain in a state of flux for some time. Medical professionals should continue adhering to the standard of care in their treatment of patients, and they should remain up-to-date on specific medical and legal guidance.
Disclaimer: This article does not constitute legal advice and is for informational purposes only. Neither the author nor the author’s law firm represents you, unless a specific engagement between you and the lawyer/firm has been consummated and only then to the extent of such engagement. The information provided herein may no longer be accurate following publication.